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Lawsuits Key After Obama Vetoes Power Plant Resolutions

By Andrew Childers

Dec. 21 — The
Environmental Protection Agency is opposed to expedited judicial
review of its Clean Power Plan as bids to block the agency's carbon
dioxide rules return to the courts following President Barack
Obama's veto of congressional resolutions meant to scuttle the
rules.

Dec. 22 is the deadline to file challenges to the
EPA's Clean Power Plan as well as to the carbon dioxide new source
performance standards for new and modified power plants, and the
agency told the U.S. Court of Appeals for the District of Columbia
Circuit that it opposes a motion from industry and state
petitioners seeking to accelerate judicial review (West Virginia v. EPA, D.C. Cir., No. 15-1363,
response filed 12/21/15).

“There is no sound reason for the court to entertain
such a motion at this stage of the case, and the procedure
suggested by petitioners would be counterproductive, unworkable,
and prejudicial to respondents,” the EPA said in a Dec. 21
response.

Opponents of the Clean Power Plan have asked the
D.C. Circuit to address the core legal questions about the EPA's
fundamental legal authority to even issue the rule, setting aside
challenges to implementing the rule for future litigation. The
petitioners have asked the court to set an expedited briefing
schedule that could see the case argued by May 2016 (See previous
story, 12/10/15).

The EPA argued that expedited review of the Clean
Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions
limits for the power sector in each state that would then be
implemented by state regulators, is premature because the D.C.
Circuit has not yet addressed motions seeking to have the rule
stayed. The Clean Power Plan faces a barrage of legal challenges
brought by 27 states and several utility and industry groups.

Divided Review Would Slow
Resolution

“Moreover, the inefficient divided briefing format
proposed by petitioners would seriously impede the orderly
consideration of this case,” the EPA said. “It could substantially
delay ultimate resolution (and thus the certainty petitioners claim
they are seeking) by requiring two potentially duplicative rounds
of briefing and multiple oral arguments in proceedings involving
challenges to the same agency rule. It would introduce confusion
about which of the overlapping issues are actually before the court
during each round of briefing.”

The EPA is also facing challenges to its new source
performance standards (RIN 2060-AQ91), which effectively require
the partial use of carbon capture and storage technologies to meet
emissions limits. Opponents of the rule say they plan to argue the
carbon capture systems required have not been adequately
demonstrated as required by the Clean Air Act (North Dakota v. EPA, D.C. Cir., No. 15-1381,
statement of issues filed
11/27/15).

Though fewer challenges have been filed to the new
source standards than for the Clean Power Plan, attorneys said
additional lawsuits are expected before the Dec. 22 deadline.

Additionally, Dec. 22 is the deadline for
administrative petitions to the EPA seeking reconsideration of the
rules.

Obama Vetoes Resolutions

The legal challenges to the rule will be the key
avenue of attack after Obama on Dec. 18 vetoed two congressional
resolutions that would have overturned the Clean Power Plan and the
new power plant standards.

“Because it would overturn carbon pollution
standards that are critical to protecting against climate change
and ensuring the health and well-being of our nation, I cannot
support the resolution,” Obama said in a Dec. 18 memorandum of
disapproval issued with the veto.

The two resolutions (S.J. Res 23; S.J. Res. 24)
passed the House Dec. 1 by large majorities but well short of the
two-thirds margin they would need to override Obama's veto (See
previous story, 12/02/15).

While Congress is expected to hold several oversight
hearings on the rule, it is unlikely to block the Clean Power Plan
legislatively after the Congressional Review Act resolutions
failed, attorneys said.

“It's still possible there could be an effort to
push back deadlines, give people more time. But that depends on
what happens in the next year” with the lawsuits, Jeffrey
Holmstead, a partner at Bracewell & Giuliani LLP representing
the American Coalition for Clean Coal Electricity in the
litigation, told Bloomberg BNA Dec. 21.

To contact the reporter on this story: Andrew
Childers in Washington at achilders@bna.com

To contact the editor responsible for this story:
Larry Pearl at lpearl@bna.com

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